Tag: Ontario Superior Court of Justice

25 May

Latest Notice to the Profession – Highlights

Kira Domratchev Estate & Trust, Estate Litigation, In the News Tags: , , , , , , 0 Comments

As many are aware, the Superior Court of Justice has essentially shut down operations, subject to certain narrow exceptions, in light of COVID-19.

On May 13, 2020, a Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media was published regarding “Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020”. The Notice can be read in its entirety here. Below, I discuss some of the highlights relevant to the estates list.

  • The Notice specifically denotes that the Superior Court of Justice has not closed and that it continues to expand its operations virtually – in writing, or by telephone or video conference hearings. It is further highlighted, that during the suspension of regular in-court operations, lawyers and parties are expected to actively move cases forward.
  • Although the requirement to gown for a Superior Court of Justice appearance is suspended, parties participating in video conferences are expected to dress in appropriate business attire and should have an appropriate technical set-up and observe etiquette appropriate to the nature of remote hearings. In fact, some guidance from the Superior Court of Justice on the issue of technical set-up can be found here.
  • On the issue of filings, the Notice indicates that factums should be hyperlinked to relevant cases (instead of filing a Brief of Authorities) and there is a very specific format of the email that is to be sent to the Court to request dates or file materials. Importantly, the size of emails has been expanded to 35MB, however, it is also noted to limit filed materials to only those necessary for the hearing (in addition to the restrictions related to the length of material, already in place).
  • Although materials are being filed electronically, given the pandemic and the need to isolate, the Superior Court of Justice expects that all materials filed electronically be later filed in hard copy with the Court and the requisite filing fee be paid. That means, that it is important to keep track of all materials filed electronically, as there is a positive obligation to deliver hard copies and payment for the filing, at a later time.
  • Service via email is permitted such that it is not necessary to obtain consent or a court order to serve a document by email where email service is permitted.
  • Whereas, urgent matters continue being heard (subject to the Superior Court of Justice’s discretion to decline to schedule for immediate hearing any particular matter listed in the Notice), the following Toronto Commercial and Estate List matters are being heard (the Notice to Profession – Toronto, can be found here):
    1. Select motions;
    2. Select applications;
    3. Case management conferences;
    4. Pre-trial conferences; and
    5. Judicial settlement conferences.

Reviewing this Notice shows that court services are expanding. Certainly, one positive effect of the pandemic has been the overall embrace of various technologies by the Superior Court of Justice, that had not been in place before.

Here is to hoping that the restrictions associated with COVID-19 are soon lifted and the pandemic blows over. At the same time, I am certainly excited to see whether we will see a significant change in court operations moving forward, as a result of this involuntary technological leap forward.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

TALK 2 NICE: Support for the Elderly During COVID-19

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The Pandemic, Law, Technology, and Change

21 May

Hull on Estates #572 – Will Challenges and Mistake of Fact

76admin Hull on Estate and Succession Planning, Podcasts, Show Notes Tags: , , , , , 0 Comments

This week on Hull on Estates, Paul Trudelle and Christina Canestraro discuss Cavanagh et al. v Sutherland et al., in which the Ontario Superior Court of Justice addresses questions of fact and law related to motions for summary judgment and mistake of fact.

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23 Apr

Hull on Estates #570 – Drafting Solicitors and Will Challenges

76admin Hull on Estate and Succession Planning, Podcasts, Show Notes Tags: , , , , , , 0 Comments

This week on Hull and Estate, Natalia Angelini and Sydney Osmar discuss Dale v Prentice, in which the Ontario Superior Court of Justice addresses whether a drafting solicitor can represent the estate in a will challenge.

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13 Nov

Hull on Estates #559 – The Importance of Comprehensive Management Plans

76admin Estate & Trust, Estate Planning, Hull on Estates, Litigation, Podcasts, Uncategorized Tags: , , , , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss the recent decision of the Ontario Superior Court of Justice in Connolly v Connolly and PGT, and the importance of filing comprehensive management plans in support of applications for appointment of guardians of property.

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17 Apr

Hull on Estates #544 – Consolidation of Family Law Act and Dependant Support Claims

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , , 0 Comments

Today on Hull and Estates, Stuart Clark and Umair Abdul Qadir discuss the recent decision in Cohen v Cohen, 2018 ONSC 1613, in which the Honourable Justice Maranger discussed the Ontario Superior Court of Justice’s jurisdiction to consolidate applications for equalization commenced pursuant to the Family Law Act with applications for dependant’s relief under Part V of the Succession Law Reform Act. You can read more about the Cohen decision on our blog.

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05 Apr

Hull on Estates #461 – Recent Developments in Physician-Assisted Death

Hull & Hull LLP Health / Medical, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , 0 Comments

This week on Hull on Estates, Paul Trudelle and Nick Esterbauer discuss recent developments in the prohibition against physician-assisted death, including the exemption granted by the Ontario Superior Court of Justice last month in A.B. v. Canada (Attorney General). (http://bit.ly/1RILY06)

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01 Mar

Hull on Estates #456 – Public Policy and Testamentary Freedom

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes, Uncategorized Tags: , , , , , , , 0 Comments

This week on Hull on Estates, David Morgan Smith and Lisa Haseley discuss public policy and the recent Ontario Superior Court decision of Royal Trust Corporation of Canada v. The University of Western Ontario et al. http://bit.ly/1R83FTR

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Click here for more information on David Smith.

22 Dec

Hull on Estates #446 – Attorney Application for Directions

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estates, Podcasts, Show Notes, Uncategorized Tags: , , , 0 Comments

This week on Hull on Estates, Paul Trudelle and Noah Weisberg discuss the recent Ontario Superior Court of Justice decision of Keller v. Wilson, 2015 ONSC 6962, pertaining to applications for directions by Attorneys and passing of Attorney accounts pursuant to the Substitute Decisions Act.

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22 Dec

Estate Trustee Removal

Noah Weisberg Estate & Trust, Estate Planning, Executors and Trustees, Trustees Tags: , , , , , , 0 Comments

The recent decision in Bunn v. Gordon demonstrates how a breakdown in the relationship between an estate trustee and beneficiary may lead to the removal of the estate trustee.

The Testator made a Will naming his girlfriend of three and a half years as estate trustee.  The Will, amongst other things, leaves real property and a portion of the residue to his two children to be held in trust by the estate trustee until attaining the age of 21.  As a result of the age of the children, the estate trustee’s office will last until at least the year 2021.

From the outset, the administration of the estate was contentious, such that the children commenced an application under s 37(1) of the Trustee Act for the removal and replacement of the estate trustee.  The law with respect to estate trustee removal has remained relatively consistent with the governing principle being the welfare of the beneficiaries and whether the continuance in office of an estate trustee will likely prevent the estate from being administered.  From this the courts do not take lightly the wishes of the deceased as expressed in the Will.

The children raised four examples in support of their application to remove the estate trustee:

  • failing to provide the children with a copy of the death certificate, despite multiple requests;
  • failing to account for a Kodiak trailer demonstrating a lack of care with the estate assets;
  • selling a desk and cupboard which was of sentimental value to the children, showing a disregard for the interests and wellbeing of the beneficiaries; and
  • failing to report on the sale of real property.

Individually, the evidence in and of itself was not sufficient to call for the removal of the estate trustee.  However, the court held that collectively the relationship between the estate trustee and children had broken down and that the antipathy towards the beneficiaries precluded the dutiful administration of the estate.  Although the behaviour was not solely the fault of the estate trustee, the court indicated that it is the estate trustee who owes the fiduciary obligation.  Therefore, the estate trustee was removed.

Noah Weisberg

14 Dec

Fiduciary Duties of Joint Account Holders

Ian Hull Joint Accounts Tags: , , , , , , 0 Comments

In a recent judgment, the Ontario Superior Court of Justice considered whether joint account holders owe a fiduciary duty with respect to the management and operation of a joint account.

The facts of MacKay Estate v MacKay, 2015 ONSC 7429 are not unusual. Dawn MacKay (“Dawn”) was married to Tom MacKay (“Tom”) one of Annie MacKay’s (“Annie”) three sons. Annie and Dawn had a very close relationship. In early 1999, Annie made a Power of Attorney for Property in favour of Tom. Shortly thereafter, Annie, with Tom’s assistance, named Dawn as joint bank account holder. At trial, Dawn advised that she and Annie had agreed that Dawn would assist Annie with her banking and her care, as well as provide companionship, in exchange for compensation. There were no specific terms agreed to at the time.

Around 2003, Dawn began making transfers from the joint account to herself. She stated that the transfers were in the nature of compensation and were loosely based around payment of $250.00 per week for services provided. After Dawn and Tom separated in 2008, Tom commenced an action as Annie’s litigation guardian seeking an accounting, payment of monies found due, damages for breach of trust, and punitive damages. After Annie died in 2010, in 2012, Tom, as Estate Trustee, continued the action on behalf of Annie’s estate.

The main issues considered by the court were (1) whether Dawn, as a joint account holder, owed a fiduciary duty to Annie in the management and operation of the joint bank account; (2) whether Dawn breached her fiduciary duty by making payments to herself from the account; and (3) whether Dawn was liable to repay the amount of the payments made.

To determine whether there was a fiduciary relationship, the court followed the guide from Frame v Smith, [1987] 2 SCR 99, to consider whether:

i. the fiduciary has scope for the exercise of some discretion or power;
ii. the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and
iii. the beneficiary is vulnerable to or at the mercy of the fiduciary holding the discretion or power.

Based on these indicia, the court found that Dawn did owe a fiduciary duty to Annie and that Dawn had acted as a trustee de son tort. The court also found that in making the payments to herself out of the joint bank account, Dawn had not breached her fiduciary duty and that, in fact, the payments were reasonable in the circumstances.

Although this case seems to establish that it is possible for a joint bank account holder to owe a fiduciary duty, it is not entirely clear from the decision whether this finding will apply only in the context of a non-contributing individual who is added to a pre-existing account in order to assist the account holder, or whether this may apply to all those who hold bank accounts jointly.

Thanks for reading.

Ian Hull

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